Negrete-Rodriguez v. Mukasey, 06-1931.

• Decision Date: 03 March 2008
• Docket Number: No. 06-2938.,No. 06-1931.,06-1931.,06-2938.
• Citation: 518 F.3d 497
• Parties: Pablo NEGRETE-RODRIGUEZ, Petitioner, v. Michael B. MUKASEY, Attorney General of the United States, Respondent.
• Court: U.S. Court of Appeals — Seventh Circuit

518 F.3d 497

Pablo NEGRETE-RODRIGUEZ, Petitioner, v. Michael B. MUKASEY, Attorney General of the United States, Respondent.

No. 06-1931.

No. 06-2938.

United States Court of Appeals, Seventh Circuit.

Argued October 30, 2007.

Decided March 3, 2008.

Maria T. Baldini-Potermin, Gostynska Frakt, Chicago, IL, for Petitioner.

Richard Zanfardino, Department of Justice Civil Division, Immigration Litigation, Washington, DC, for Respondent.

Before MANION, ROVNER, and SYKES, Circuit Judges.

MANION, Circuit Judge.

Pablo Negrete-Rodriguez ("Negrete") is a Mexican citizen. He was admitted to the United States as a lawful permanent resident in 1965. Later, Negrete was convicted of several crimes in Illinois, including possession of a firearm by a felon. Removal proceedings were instituted against him in 2001. After a hearing, the Immigration Judge ("IJ") determined, among other things, that Negrete's Illinois firearms conviction was an aggravated felony, thus barring Negrete from eligibility for cancellation of removal, and ordered Negrete removed to Mexico. The Board of Immigration Appeals ("Board") affirmed the IJ's decision and denied Negrete's motion to reconsider. Because we conclude that the Board properly categorized Negrete's Illinois felon-in-possession conviction as an aggravated felony, we deny Negrete's petitions for review.

I.

Negrete entered the United States as a lawful permanent resident on September 28, 1965, at the age of four. While in the United States, Negrete compiled an extensive record of criminal arrests and convictions beginning in the early 1980's and ending in the middle of the next decade. All of Negrete's arrests and convictions took place in Illinois. In 1981, Negrete was arrested four times, including once for disorderly conduct, another time for unlawful use of a weapon, and yet another time for theft. In 1982, Negrete was arrested and convicted of robbery; in 1984, he was arrested for battery. Negrete was arrested and convicted again in April 1986, this time for possession of a controlled substance. He was also arrested in August 1986 for driving under the influence, leaving the scene of an accident and failing to report it, failing to have a valid driver's license, and driving in the wrong lane. Negrete added two more arrests to his record for driving under the influence, once in 1993 and again in 1995, as well as an arrest for drinking in public in 1994. In 1990, Negrete was arrested for aggravated assault. Most pertinent to this opinion, however, is Negrete's 1990 conviction for unlawful possession of a weapon by a felon in violation of 720 ILCS 5/24-1.1(a).¹

In 2001, Negrete left the United States to visit Mexico. Upon his return, the Department of Homeland Security ("DHS")² initiated removal proceedings against Negrete, charging him in the Notice to Appear ("Notice") as an arriving alien who was subject to removal based on §§ 212(a)(2)(A)(i)(I)-(II) of the Immigration and Nationality Act ("INA"), codified at 8 U.S.C. §§ 1182(a)(2)(A)(i)(I)-(II), for crimes involving moral turpitude and a controlled substance. The Notice listed Negrete's 1982 conviction for robbery, his 1986 conviction for possession of a controlled substance, and his 1990 conviction for unlawful possession of a weapon by a felon. At Negrete's first appearance in immigration court on September 5, 2002, DHS noted that the Notice would have to be amended, as it incorrectly listed Negrete as an arriving alien instead of a lawful permanent resident, and also requested a continuance. The IJ granted DHS's request without objection from Negrete and continued Negrete's hearing until January 9, 2003.

The hearing was continued several more times after the January 9, 2003, date. In the interim, the government supplemented the Notice to reflect Negrete's status as a lawful permanent resident rather than an arriving alien. In addition, the government revised its charges, alleging, among other things, that Negrete was removable under § 237(a)(2)(A)(iii) of the INA, codified at 8 U.S.C. § 1227(a)(2)(A)(iii), for having been convicted of two aggravated felonies, the first an offense involving a controlled substance as defined in § 101(a)(43)(B) of the INA, codified at 8 U.S.C. § 1101(a)(43)(B); and the second a firearms-related offense as defined in § 101(a)(43)(E)(ii) of the INA, codified at 8 U.S.C. § 1101(a)(43)(E)(ii). While the government was amending its charges, Negrete filed an application for a waiver under the former § 212(c) of the INA³ and applied for cancellation of removal as well.

On February 7, 2005, the IJ held a hearing and found, among other things, that DHS had proved the two aggravated-felony grounds for removal by clear and convincing evidence. Relying on the Board's finding in In re Yanez-Garcia, 23 I & N Dec. 390 (BIA 2002), the IJ rejected Negrete's argument that his 1987 possession of a controlled substance should not have been classified as an aggravated felony. The IJ also rejected Negrete's argument that his firearms conviction did not amount to an aggravated felony. In rejecting the latter argument, the IJ discussed In re Vasquez-Muniz, 23 I & N Dec. 207 (BIA 2002) ("Vasquez-Muniz II"), wherein the Board reversed its two-year-old ruling in In re Vasquez-Muniz, 22 I & N Dec. 1415 (BIA 2000) ("Vasquez-Muniz I"). In Vasquez-Muniz I, the Board had held that a state law conviction for possession of a firearm by a felon did not count as an aggravated felony for immigration purposes if the state offense did not require an effect on interstate or foreign commerce. Based on In re Yanez-Garcia and Vasquez-Muniz II, the IJ further determined that Negrete had no valid form of relief from removal available to him, and therefore ordered that Negrete be removed to Mexico.

Negrete appealed to the Board. In a decision dated March 9, 2006, the Board affirmed the IJ's ruling and dismissed Negrete's appeal. Negrete filed a motion to reconsider, arguing that his removability was affected by this court's decision in Gonzales-Gomez v. Achim, 441 F.3d 532 (7th Cir.2006), wherein we held that a drug offense that was classified as a felony under state law, but only a misdemeanor under the Controlled Substances Act, did not constitute an aggravated felony under the INA. The Board agreed that, under Gonzales-Gomez, Negrete's 1987 drug conviction could not count as an aggravated felony. However, the Board, citing its decision in Vasquez-Muniz II, found that Negrete was still removable under the INA as an alien convicted of an aggravated felony because of his conviction for unlawful possession of a firearm by a felon. Negrete filed both a petition to review the Board's decision affirming the IJ and a petition to review the Board's denial of his motion to reconsider.

II.

On appeal, Negrete challenges the Board's interpretation of the INA's aggravated felony provision in Vasquez-Muniz II, as well as the Board's application of its decision in Vasquez-Muniz II to this case. Specifically, he argues that the Board should not have classified his 1990 Illinois conviction for unlawful possession of a weapon by a felon as an aggravated felony under the INA. That classification is important because an aggravated felony prevents Negrete from seeking cancellation of removal. See 8 U.S.C. § 1229b(a) ("The Attorney General may cancel removal in the case of an alien who is inadmissible or deportable from the United States if the alien ... has not been convicted of any aggravated felony."). Section 101(a)(43) of the INA defines aggravated felonies. 8 U.S.C. § 1101(a)(43). The pertinent subsection of that provision is § 101(a)(43)(E)(ii) of the INA, which provides that "[t]he term `aggravated felony' means ... an offense described in ... section 922(g)(1) ... of Title 18 (relating to firearms offenses)." 8 U.S.C. § 1101(a)(43)(E)(ii). In addition, the penultimate sentence of § 101(a)(43) states that "[t]he term [aggravated felony] applies to an offense described in this paragraph whether in violation of Federal or State law." 8 U.S.C. § 1101(a)(43).

Negrete argues that his 1990 conviction for unlawful possession of a firearm by a felon is not an offense "described in" 18 U.S.C. § 922(g)(1) because the elements of those offenses are not the same. "There are three elements to a § 922(g)(1) violation: the prior felony, the possession of the gun and the gun's travel in interstate commerce (that is, across state lines) prior to the defendant's possession of it." United States v. Ortiz, 474 F.3d 976, 982 (7th Cir.2007). In contrast, the elements for the offense of unlawful possession of a weapon by a felon in Illinois are: "(1) the defendant knowingly possessed a firearm, and (2) the defendant had previously been convicted of a felony." People v. Vasquez, 368 Ill.App.3d 241, 305 Ill.Dec. 718, 856 N.E.2d 523, 531-532 (2006) (citing 720 ILCS 5/24-1.1(a)). Because a conviction for unlawful possession of a weapon by a felon in Illinois does not require the element of "in or affecting commerce," as § 922(g)(1) does, Negrete argues that his 1990 Illinois conviction for unlawful possession of a weapon is not an offense "described in" section 922(g)(1), and consequently is not an "aggravated felony" under § 101(a)(43)(E)(ii) of the INA.

Before we examine that contention, we must determine the standard of review. "Ordinarily, we review de novo the classification of an offense as an aggravated felony, giving deference to the [Board's] reasonable interpretation of the INA." Sharashidze v. Gonzales, 480 F.3d 566, 568 n. 4 (7th Cir.2007). However, Negrete argues that we owe the Board no deference here because this case, like Gonzales-Gomez v. Achim, 441 F.3d 532 (7th Cir.2006), turns on the interpretation of federal criminal law. We disagree. In Gonzales-Gomez, the interpretation of the phrase "any felony punishable under the Controlled Substances Act" in 18 U.S.C. § 924(c)(2) was at issue. Here we need not interpret any federal criminal statute....